U.S. Department of Housing and Urban Development

Office of Housing

Special Attention of: Notice H 96-74

All Housing Directors

All Multifamily Housing Issued: August 28, 1996

Directors; All Asset Management Expires: August 31, 1997

Branch Chiefs; Owners/Managers;

Contract Administrators Cross References: 4350.1, 4350.2

Subject: PROJECT-BASED SECTION 8 CONTRACT EXPIRING IN FISCAL YEAR 97

This guidance implements Section 405(a) of the Continuing

Resolution of January 26, 1996 (CR), concerning the Department's policy

on Section 8 Housing Assistance Payments (HAP) contracts expiring in

Fiscal Year (FY) 1997. It is anticipated that Congress could pass new

or revised language in an FY 1997 Appropriations Act or Continuing

Resolution. However, the January 26, 1996, Continuing Resolution gave

authority to enter into new, contracts for FY 1997 and beyond, and to

ensure timely contract funding, the following procedures implement

existing authority and are outstanding until superseded.

I. WHICH PROGRAMS ARE COVERED?

Until further notice, the policies and procedures described in this

memorandum apply to all project-based Section 8 contracts expiring in FY

1997 and beyond. This includes the following programs: New

Construction/Substantial Rehabilitation (Part 880-881); Loan Management

Set-Aside and Property Disposition Set Aside (Part 886); Housing for the

Elderly (Part 885); Set-Aside for Rural Rental Projects (Part 884); and

State Housing Agency Program for Substantial Rehabilitation Projects

(Part 883). NOTE: This Notice DOES NOT COVER the Section 8 Moderate

Rehabilitation Program.

II. CAN ANY PROVISIONS OF THIS NOTICE BE WAIVED?

The provisions of this Notice supersede your authority under the

delegation to grant waivers, which was published on December 6, 1994, as

the Notice of Revocation and Redelegation of Authority [59 FR 62739].

Therefore, all requests for a waiver from any provisions of this Notice

must receive the approval of the Assistant Secretary for Housing-Federal

Housing Commissioner.

HMHP: Distribution: W-3-1

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III. WHAT IS THE DEPARTMENT'S AUTHORITY TO OFFER PROJECT-BASED

ASSISTANCE IN

FY 1997 AND BEYOND?

A. Section 405 of the January 26, 1996 CR address the issue of

expiring Section 8 Contracts, and are discussed in considerable

depth in Notices 96-7 and 96-51, respectively.

B. Section 405(b) of the CR identified specific procedures, time

restrictions, and rent levels for renewing Section 8 contracts

expiring during FY 1996. Notice 96-7 clarified the statutory

provisions delineated in the CR, and directed that HUD offer

project owners a one year renewal, at current rent levels, for

Section 8 contracts expiring in FY 1996. This directive also stated

that there would be no provision for rent increases in these

renewals.

C. Under Section 405(a) and Section 405(c) of the CR, the Secretary

has the discretion to address project-based Section 8 contracts

expiring in FY 1997 and beyond. As a matter of programmatic

decision-making, the Department has decided to renew contracts

expiring in FY 1997 under the authority granted to the Secretary in

section 405(a). Section 405(a) states:

"For fiscal year 1996 and henceforth, the Secretary of Housing

and Urban Development may use amounts available for the

renewal of assistance under section 8 of the United States

Housing Act of 1937, upon termination or expiration of a

contract for assistance under section 8 of such Act of 1937

(other than a contract for tenant-based assistance and

notwithstanding section 8(v) of such Act for loan management

assistance), to provide assistance under section 8 of such

Act, subject to the Section 8 Existing Fair Market Rents, for

the eligible families assisted under the contracts at

expiration or termination, which assistance shall be in

accordance with terms and conditions prescribed by the

Secretary."

IV. HOW WILL HUD HANDLE EXPIRING SECTION 8 CONTRACTS?

The following guidance is based on our application of Section 405(a) of

the CR. Therefore, until further notice, the policy for all project-

based Section 8 contracts (as identified above) that expire in FY 1997

and beyond shall be as follows:

1. Owners will be offered a new one-year HAP contract. The

Department has developed a standardized form for the new one-

year project-based Section 8 assistance contract (Attachment

1). This document shall be used in all instances where an

expiring project-based Section 8 contract is being replaced

with a new one-year contract;

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2. If the Owner wishes to execute a new project-based section 8

assistance contract, the owner, no more than fifteen (15) days

after contract expiration or termination, must certify to HUD

or other designated contract administrator (as appropriate) in

writing as to the number of eligible families currently

occupying units (The count must not include those tenants

housed under a tenant-based subsidy);

3. At the request of the owner, a new contract will be executed

between HUD and the owner, at rent levels established

according to the following standard:

a. All projects whose current rents exceed 120% of Fair

Market Rents (FMRs), at the time of contract expiration,

will be reduced to 120% of FMRs in a new one-year

contract. There will be no rental adjustments during the

contract year;

b. All projects whose current rents fall below 120% of FMR,

at the time of contract expiration, will be renewed at

their current rents in a one-year contract. For these

projects, there will be a rental adjustment provision to

allow for a rental increase during the one-year term of

the new contract, based on demonstrated need, limited to

5% of the overall budget amount, but not to exceed 120%

of FMRs. Instructions for rental adjustment requests are

set forth in Attachment 4.

4. No later than the commencement date of the new project-based

assistance contract, a new lease should be executed between

the owner and each family who will continue to receive

project-based assistance. The revised Model Lease (Attachment

5) contains amended Termination of Tenancy provisions which

address the one-year contract termination and owner

notification requirements. A new lease is not required if

this language is present in the existing lease.

V. WHAT ARE THE PROJECT OWNER'S NOTICE REQUIREMENTS TO HUD AND THE

RESIDENTS?

A. Background

1. For owner termination or contract expiration, Section 8(c) (9)

of the United States Housing Act of 1937 (42 U.S.C. Sec.

1437f) requires project owners to provide written notice to

HUD and the residents, not less than one year in advance of

the contract termination date, of either the owner's intention

not to continue, or the expiration of, the project's expiring

HAP contract.

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2. For the purposes of 8(c) (9), the term "termination" means the

expiration of the assistance contract or an owner's refusal to

renew the assistance contract. Termination may also include

cessation of the contract for business reasons.

B. Notice of Contract Expiration

Section 8(c) (9) covers all Section 8 HAP contracts. Therefore, for

all project-based Section 8 contracts, the owner, one (1) year

prior to contract expiration, must provide proper notice to HUD and

to all affected households.

C. Notice of Rent Increases

In addition to the One-Year Notice above, the owner, no less than

ninety (90) days prior to the contract expiration date, must notify

each assisted family of any increase in the amount the household

will be required to pay for rent as a result of the expiration of

the assistance contract.

D. If Proper Notice Was Given:

If project-based Section 8 HAP contracts expire and the owner has

given proper notice in accordance with 8(c) (9), HUD shall:

1. Provide one (1) year tenant-based assistance to all eligible

families in residence on the day of contract expiration;

2. The instructions for replacing project-based subsidy with

tenant-based subsidy are included as Attachment 6 to this

Notice. These instructions supersede the guidance found in

Chapter 4 of HUD Handbook No. 4350.2. To ensure adequate

processing time, the process of issuing tenant-based tenant

subsidy must begin 90 days prior to the expiration date of the

project-based contract;

3. In those instances where expiring project-based Section 8 is

replaced with tenant-based subsidy, the tenant-based

assistance shall be administered by the local Public Housing

Authority (PHA) or other designated contract administrator (as

appropriate), and will be monitored by HUD's Office of Public

and Indian Housing as part of their normal oversight

responsibilities.

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E. If Proper Notice Was Not Given

1. If project-based Section 8 HAP contracts expire and the owner

has failed to give proper notice in accordance with 8(c) (9),

owners must choose one of the following two options:

a. Entering into a new, project-based HAP contract for one

year at the rents established by this Notice; or

b. Permit the tenants assisted by the expiring contract to

remain in their units for the one year notice period

without increasing the share of the rent these residents

were paying under the expiring contract.

2. HUD expects that until such time as the owner has met the 8(c)

(9) notice requirements, the owner will not be allowed to

collect from the tenant any more than the total tenant payment

as calculated in accordance with 24 CFR Part 813.

VI. HOW WILL HUD DETERMINE WHO IS ELIGIBLE, I.E. THE NUMBER OF ELIGIBLE

FAMILIES?

Section 405(a) of the CR states, in part, that the new assistance

is "for the eligible families assisted under the contracts at expiration

or termination." Consequently, HUD or other designated contract

administrator (as appropriate) will employ the following standard to

determine the number of eligible families:

1. The new project-based Section 8 contract will be based on the

total number of units in the project that are occupied by

eligible families;

2. The owner, no more than 15 days after contract expiration or

termination, must certify to the Contract Administrator (in

writing) the number of units occupied by eligible families;

3. Upon receipt of the owner's certification of units, the

Contract Administrator will contract for and fund only those

units within the property which meet HUD's Housing Quality

Standards, and which are occupied by families who are eligible

for and receiving assistance at contract expiration or

termination up to a maximum of the total number of units under

the expiring section 8 contract.

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VI. ATTACHMENTS

We have included the following attachments to aid you in

implementing the requirements of this notice:

o Attachment (1) is a new Project-based Section 8 contract which

reflects all of the new requirements. Until further notice,

this new contract shall be utilized in conjunction with all

Project-based Section 8 contracts expiring in FY 1997 and

beyond.

1a. HAP where HUD is CA

1b. HAP where PHA is CA

o Attachment (2) is a revised SAMPLE one-year notification

letter (to be mailed by the Field Office to the owner) to

ensure that the project owner, for contract termination

purposes, has provided adequate notice to HUD and the

residents.

o Attachment (3) is a revised SAMPLE notification letter to the

tenants (to be mailed by the owner). This letter ensures

uniformity among project owners in adhering to the

implementing provisions of this notice.

o Attachment (4) are instructions for processing rental

adjustments up to 5% of overall budget, but not exceeding 120%

of FMRs.

o Attachment (5) is the revised Model Lease. The new lease

contains ended Termination of Tenancy provisions which address

the one-year contract termination/expiration and owner

notification requirements.

o Attachment (6) are instructions for issuing tenant-based

subsidy when project-based contracts expire.

o Attachment (7) is an ACC renewal form.

o Attachment (8) is a SAMPLE letter for residents receiving

vouchers.

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o Attachment (9) is a FACT SHEET for Section 8 Rental Vouchers

for residents and/or public media.

For questions or clarifications concerning this Notice, calls may

be directed to the Program Management Division at 202-708-3944.

Nicolas P. Retsinas

Assistant Secretary for Housing-

Federal Housing Commissioner

Attachments

ATTACHMENT 1(a)

U.S DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT

Office of Housing, Federal Housing Commissioner

HOUSING ASSISTANCE PAYMENTS CONTRACT

HUD as Contract Administrator

This Housing Assistance Payments Contract ("Contract") is entered into

between the U.S. Department of Housing and Urban Development ("HUD") and

______("Owner") pursuant to the United

States Housing Act of 1937, 42 U.S.C. 1437, et seq. ("Act") and the

Balanced Budget Downpayment Act, also known as the Continuing Resolution

("CR") passed by Congress on January 26, 1996, (PL 104-99. See H.R.

2880, Sec. 405). The purpose of this Contract is to provide housing

assistance payments on behalf of Eligible Families ("Families") leasing

decent, safe and sanitary units from the Owner.

1. Commencement Date, Term, Contract Units, and Contract Rents.

(a) Commencement Date of Contract. The effective date of this Contract

is ______. The date inserted must be the day after the

Expiring Contract expires. For example, if the Expiring Contract

expires on February 21, 1996, the date inserted must be February

22, 1996.

(b) Term of Contract. The term of this Contract is one year (365

days), beginning on the Commencement Date.

(c) Contract Units, and Contract Rents. This Contract is hereby

executed with respect to the units ("Contract Units") described in

Exhibit A listed by size and their applicable rents ("Contract

Rents").

2. Owner's Warranties

The Owner warrants that the rental units listed in Exhibit A are in

good and tenantable condition and meet HUD's Housing Quality

Standards.

3. Families To Be Housed; HUD Assistance.

(a) Families To Be Housed. The Contract Units are to be leased by the

Owner to eligible Very Low-Income Families ("Families") for

occupancy by such Families solely as private dwellings and as their

principal place of residence.

(b) HUD Assistance.

(1) HUD will be the Contract Administrator.

(2) HUD hereby agrees to make housing assistance payments on

behalf of Families for the Contract Units, to enable the

Families to lease decent, safe, and sanitary housing pursuant

to section 8 of the Act.

(3) If there is a Utility Allowance and if the Allowance exceeds

the total Family contribution, the Owner shall pay the Family

the amount of the excess. HUD will pay funds to the Owner in

trust solely for the purpose of making this payment. Any

pledge by the Owner of payments properly payable under this